The main legal point established in the judgment is the interpretation and application of the provisions of Order XXXVII Rule 4 and Rule 3(4) of CPC regarding the service of summons for judgment in a summary suit.

JUDGMENT

(Prayer: Civil Revision Petition filed under Article 227 of Constitution of India, to set aside the common order dated 08.10.2021 passed by the Learned XVIII Additional City Civil Court, Chennai, in I.A.No.1 of 2021 in O.S.No.3460 of 2020.)

1. This petition had been filed seeking to set aside the order passed in I.A.No.1 of 2021 in O.S.No.3460 of 2020 on the file of the XVIII Additional City Civil Court, Chennai.

2. It is the contention of the Learned Counsel for the Petitioner that the petition had been filed seeking to set aside the order passed in I.A.No.1 of 2021 in O.S.No.3460 of 2020, filed by the Defendant seeking leave to defend.

3. It is the further contention of the Learned Counsel for the Petitioner that he had filed a suit in O.S.No.3460 of 2020 under Order XXXVII Rule 4 of CPC, and on filing the suit, the Plaintiff issued Judges summons based on which notice had been served within 10 days to the Defendant. The Defendant claims that he was not served with the notice of Judges summons within 10 days as specified in Order XXXVII Rule 3 of CPC. Therefore, he had claimed that his valuable right of defence had been affected and he sought to convert the suit into an ordinary suit and had filed I.A.No.1 of 2021 seeking to convert the suit into an ordinary suit and permit him to defend the suit.

4. The Learned Judge without going into the facts regarding the service of notice within stipulated time of 10 days, accepted the petition filed by the Defendant seeking to convert the suit into an ordinary suit and allowed the I.A.No.1 of 2021 and dismissed the I.A.No.2 of 2021, as per the order dated 08.10.2021.

5. The Learned Counsel for the Petitioner invited the attention of this Court to the provision of law under Order XXXVII Rule 1 to 7 of CPC and to the orders passed by the Learned XVIII Additional Judge, City Civil Court, Chennai, by a common order dated 08.10.2021 in I.A.Nos.1 & 2 of 2021 filed by the Defendant to try the suit as an ordinary suit, I.A.No.2 of 2021 had been filed by the Defendant to grant leave to the Applicant to defend the suit. The claim of the Defendant in the suit that the notice of the Judges summons in Form No.4 in Appendix B was not served upon him within 10 days by the Respondent/Plaintiff is false. In compliance of the provisions stipulated under Order 37 Rule 3 (4) of CPC and on receipt of notice of appearance on 19.02.2021, the Respondent/Plaintiff served the Judges Summons in Form 4 A in Appendix B on the Petitioner/Defendant within a period of 10 days that is on 01.03.2021 and the same was also acknowledged by the Counsel for the Petitioner/Defendant. The Affidavit of Service was also filed before the Court regarding the service of summons on the Counsel for the Petitioner.

6. The contention of the Defendant to treat the suit as an ordinary suit does not hold water. After conducting the enquiry, the Learned XVIII Additional Judge, City Civil Court, Chennai had passed a common order. The Learned Judge failed to follow the mandatory provision of Order XXXVII of CPC. Therefore, as a consequence, the suit which has been treated as ordinary suit, cannot be allowed to continue as summary suit. On entering appearance by the Defendant, he contended that the Plaintiff had not served on the Defendant, only in order to avoid full fledged trial and cross examination. Therefore, the Learned Judge had dismissed the I.A.No.2 of 2021 and allowed the I.A.No.1 of 2021.

7. It is the further contention of the Learned Counsel for the Petitioner that he is the Plaintiff before the trial Court, who had served the notice on the Respondent/Defendant within 10 days, as per Order XXXVII Rule 3 CPC, and an affidavit of service also filed before this Court. Without verifying those things, the Learned XVIII Additional Judge, City Civil Court, Chennai ought not to have come to a conclusion that the notice was not served on the Respondent/Defendant.

8. The Learned Counsel for the Petitioner invited the attention of this Co